District Attorney Brooke Jenkins’ office filed a motion Friday to dismiss the last outstanding police shooting in San Francisco, the case against Officer Kenneth Cha for the killing of Sean Moore, an unarmed Black man who was shot on his front steps in 2017.
The dismissal brings to an end all attempts to prosecute a San Francisco police officer for homicide in an on-duty shooting. This was the last case — and, to legal experts, the strongest — in efforts to hold a police officer accountable, as Moore was unarmed, on his own property at the time of the incident, and had repeatedly told officers to leave.
Nevertheless, the DA filed a 35-page motion of dismissal on Friday — just a day after an assistant district attorney told a judge the case would continue — saying the prosecution could not prove beyond a reasonable doubt that Cha had acted unlawfully in shooting Moore.
A sizable portion of the dismissal concerns the shooting itself, arguing that Cha was acting in self-defense, and in defense of his partner, when he shot the unarmed Moore twice. That portion summarizes the events leading up to the shooting, cites relevant case law, and concludes the shooting was legally justified.
But half of the dismissal is concerned instead with what Jenkins says are ethical lapses by the Boudin administration.
Specifically, Jenkins wrote that former Assistant District Attorney Lateef Gray, head of the unit that investigated police shootings, was closely involved in Cha’s prosecution. This, Jenkins argued, compromised the case against the officer, because of Gray’s prior involvement with Moore while in private practice.
Gray was part of a legal team that, in June 2018, sued San Francisco, Cha, and Cha’s partner, Officer Colin Patino, for violating Moore’s civil rights in connection with the shooting. That civil suit was settled in August 2021 for $3.25 million. Gray was later hired by Boudin.
In the dismissal, Jenkins alleged that Gray was involved in “discussions of strategy,” the hiring and payment of expert witnesses, the removal of a DA investigator involved in the case, and the hiring of his replacement. The motion did not detail the alleged strategy discussions, nor how Gray’s involvement in the case affected the charging decision.
Gray denied wrongdoing. He said he “never worked on the criminal case,” but did not address questions about whether he sent or received emails about the case.
“It’s unfortunate that, instead of being honest and transparent with San Franciscans about how she is handling the [police shooting] cases, she chooses to make false accusations.”
The San Francisco District Attorney’s Office did not respond to requests for comment.
Boudin-era prosecutors push back
Five former members of Boudin’s office contest Jenkins’ assertion. They say that, while Gray may have been included on emails regarding the case, those emails were administrative — approving invoices for expert witnesses, scheduling grand jury sessions, and other “perfunctory” requests.
They said the examples in Jenkins’ dismissal — the hiring and payment of witnesses, or the removal and hiring of investigators — were routine, involving approving invoices or moving requests up the chain of command.
The five former prosecutors insisted that Gray was firewalled from decision-making in the Cha prosecution, and that the allegations of impropriety only served as a pretense for Jenkins to dismiss the police shooting case.
“No, there was not a substantial involvement,” said Rebecca Young, one of the prosecutors in Boudin’s office who led the case against Cha. Young is now the Moore family’s attorney.
“He was absolutely walled off,” added another Boudin-era prosecutor close to the case.
“[Gray] made it very clear: Don’t talk to me about that case,” said a third prosecutor close to the case. Two other prosecutors alleged the same: That Gray was not involved in decisions or strategy in the prosecution of Cha, as Jenkins alleged in her motion. The DA’s office, at the time of Gray’s hiring, said publicly there was a firewall between Gray and the Cha prosecution.
Still, Young, for her part, said that Gray could have more strictly obeyed the firewall by not responding to any communications about the case whatsoever.
“Lateef properly would have said, ‘I’m firewalled, I cannot respond to your email, please redirect your inquiry,’” Young said. Instead, Young says, Gray responded to questions and administrative requests on the case, though she reiterated that his emails did not represent substantial involvement.
The allegations may be inconsequential: Jenkins has dropped the prosecution altogether. California Attorney General Rob Bonta could take up the case, and Young has called for that, but Bonta has in the past declined to take on the prosecution of a similar police shooting that Jenkins previously dropped.
Emails alleging ethical conflicts redacted
On Jan. 6, 2017, Officers Cha and Colin Patino were responding to a noise complaint from Moore’s next-door neighbor. The officers rang Moore’s doorbell just after 4 a.m., and Moore, after answering the door, repeatedly told both officers to leave his stoop.
Multiple judges ruled in the months after the shooting that both officers were trespassing and acting unlawfully when they remained on Moore’s steps despite his instructions. Moore, who was combative towards the pair, told the officers to leave dozens of times.
Moore died in 2020, in San Quentin Prison, as a result of his gunshot wounds. Boudin charged Cha with homicide in November 2021.
Jenkins, in her dismissal motion, cites “email exchanges” showing “virtually daily involvement by Gray on the case of his former client.” She writes that Gray supervised the prosecutors in charge of the case, hired and paid expert witnesses, and discussed case strategy.
“Gray was never ‘walled off’ from the Moore/Cha [police shooting],” Jenkins writes.
The emails alleging substantial involvement are redacted. Mission Local has filed a public records request for the emails.
Young, who was required to turn over those emails to the court and Cha’s defense attorney, said that Gray was largely on the receiving end of emails about the case from District Attorney Investigator Jeffrey Pailet, the investigator who first responded to the shooting in 2017.
Young said that “Pailet was the one who initiated and opened up involving Lateef,” and that Gray then responded to those emails.
Even Pailet, who is suing Boudin, his prosecutors, and the city for wrongful termination related to this case, himself asserted that Gray was walled off.
His civil complaint notes that Gray did not respond to an email sent by Pailet because of the firewall. “Due to Managing Attorney Gray’s past involvement in the case, he had been formally excluded from investigation,” the complaint reads.
Other prosecutors involved in the case said they did not communicate with Gray about the prosecution. “We weren’t emailing each other,” said one. “I’ve never seen him write an email about the case,” said another. Two other prosecutors said the same.
Young, who said Gray did receive emails, but that they were regarding inconsequential matters, added that she did not see the conflict-of-interest because Gray was not materially involved.
“Is it cause for a motion to dismiss here?” she asked. “Ethically, I don’t see the misconduct.”
‘They’re clowning us‘
For Moore’s family, the dismissal created a sense of whiplash: The day before the motion to dismiss was filed, Assistant District Attorney Darby Williams, speaking on behalf of Jenkins, told the court the case was proceeding after months of delay.
“Who, in good faith, walks into court on a Thursday, makes a big splash about setting this famous case for preliminary hearing, and then, on the very next day, files a 35-page motion to dismiss?” said Ellen Chaitin, a retired judge with 30 years of experience in the California Superior Court. “It totally lacks integrity.”
Kenneth Blackmon, Moore’s brother, said he was “beyond angry” when Williams called him the day after the court appearance and told him the case would not be proceeding after all.
“I was in court yesterday, you were in the court yesterday, the judge was in court yesterday, the lawyer was on Skype, and y’all set a date for a preliminary hearing,” Blackmon said he told the prosecutor. “If you believed that, why would you stand there the day before and act as if you’re proceeding with this case, and the very next day you filed a motion to dismiss the case?”
Young and Chaitin said that the lengthy dismissal would have required weeks or months of work, and that Williams must have known about the intention to dismiss when she told the judge, and Moore’s family, that the prosecution would proceed.
“It feels so deceitful,” said Young, the Moore family’s lawyer. “They’re clowning us.”
How much is the police union paying this DA?
Seeing as they basically got Chesa removed and had her installed . . . I’d say they’re paying her the current and future value of her position as DA. And they’re doing it openly and notoriously.
Just say no, to prosecutors who are really public defenders.
Breed and Jenkins have made a mockery of the latest attempt to hold the SFPD transparent and accountable. That effort, begun in 2016, after numerous studies, including one by DA George Gascon, was widely hailed as a turning point. The SFPD itself collaborated publicly in an elaborate process and published an independent report which was critical of some of its its own actions. The main result of that process was a use of force policy (the existing policy at the time had not been reviewed, even by the so-called police commission, for over 20 years ). The new policy, worked out with SFPD participation and approval, explicitly called for “de-escalation.” At minimum the officers, who without cause, refused to leave the property, refused to step back and quiet things down, instead went ballistic, shot and killed an unarmed man. Have they been disciplined? I imagine Jenkins will defend her cowardice by saying she’s black. Breed will chime in citing her own skin color and having been raised in the Western Addition, and the cops will be once again be encouraged to act like an occupying army that shoots (Blacks and Latinos, first, and hides behind the badge which has once again been sullied and shamed.